One of the most difficult parts of the process of separation or divorce for parents can be determining how child custody and access can be arranged. What’s more, is that even when an arrangement is settled upon, there can be factors that cause the arrangement to be called into question. When the child or children involved ask their parents or the courts to alter a parenting arrangement, the courts must consider a number of factors, including but not limited to, the preference of the child. When other factors are also introduced, such as those related to safety, a parent with part-time parenting time can lose it. This is demonstrated in a recent decision from the Superior Court of Quebec, where a father’s refusal to comply with COVID-19 restrictions proved to be the last straw.

Child has difficulty spending time with father

At the time of the trial, the child involved was 11-years-old. His parents separated in 2010, one year after the child was born. Despite their separation, the parents lived together for another five years. When the father left the home a shared custody arrangement was put in place. At this time the child was six years old.

The child had difficulty staying with his father from the outset. Problems first arose when the father imposed a strict vegan diet on the child, who did not like much of the food presented to him by the father. The father would force the child to eat the food, presenting the same dish to him at every meal until the child finally ate it. The father also exclusively used sunscreen and laundry detergent that the child didn’t like, with the sunscreen leading to burns and the clothes not being cleaned properly. There were also incidents where the father used physical force against the child as a form of punishment.

Over the years the child repeatedly asked the mother if he could live exclusively with her.

COVID-19 instructions are ignored

After keeping the custody arrangement in place for five years, COVID-19 hit and the father refused to follow the directions of Public Health, criticizing them in front of the child.

The father also made the child watch YouTube videos where people speak disparagingly about those who follow COVID-19 rules.

The father said his failure to follow rules, including not wearing a mask, are related to health problems. But the father did not provide any evidence to support this claim. The court found that the father simply found masks uncomfortable, which is not enough of a justification to not wear one.

Speaking to the father’s choice to expose the child to YouTube videos where people speak out against pandemic measures, the court wrote,

“Although freedom of expression is a recognized right, this does not go so far as to allow an adult to denigrate and discredit, in the presence of his minor child, citizens who respect the rules decreed by health authorities in the midst of a pandemic. The message sent by the parent to his child is then that it is not important to respect the law or the health and safety of others, which prompts the Court to question the father’s parental capacities in matters of education and well-being of the child and, consequently, the arrangements for custody.”

The court looked at both the wishes of the child as well as the behaviour of the father and found that a change in the arrangement was necessary. The father’s parenting time was reduced to a schedule that will see the child with his father every other weekend from Saturday at 10:00am to Sunday at 6:00pm.

Contact Gelman & Associates to learn how knowledgeable family law lawyers can protect your custody and access rights. Conveniently located in six offices throughout Ontario, our offices are easily accessible by transit and off-highway. In order to be available to clients and prospective clients, our phone lines are open Monday to Friday from 8 AM to 8 PM. Call us at (416) 736-0200 or 1-844-736-0200 or contact us online for an initial consultation.

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